Seniors, Guns, and the Second Amendment

Imagine that you are the court-appointed caretaker (commonly known as a guardian and conservator) for a war veteran who no longer remembers to pay his bills on time or take his medications.  The veteran is a gun owner, and you are faced with the task of telling him that you are going to remove his guns from his home.

You have to tell him this, because the phrase “adjudicated a mental defective” under federal law is defined as:

“A determination by a court, board, commission, or other lawful authority that a person, as a result of . . . incompetency, condition, or disease . . .lacks the mental capacity to contract or manage his own affairs.”

The elements of the above test encompass the standard in many states for when a state court can take away a person’s right to make decisions and appoint a guardian or conservator to make decisions for that person.  Guardians and conservators are frequently appointed for seniors who are declining mentally or physically and who need the help of a friend, family member, or professional to pay their bills or assist them with other tasks of daily living.  When there is such a court order, and the court has made the finding that the person, because of incompetence or condition lacks the mental capacity to manage his or her own affairs, the person can no longer possess firearms under the federal law known as the Gun Control Act.

On top of the already tough situation, the court-appointed caretaker can be held liable if this senior shoots and kills another person or commits suicide.

Last year, I had the honor of speaking to the members of the Idaho Guardian and Fiduciary Association (IGFA).  I also had the pleasure of working with top-notch estate professionals, including attorneys, bankers, financial planners, and accountants in a proactive legislative group known as the Trust and Estate Professionals of Idaho.   My role before both of these organizations was that of advisor on federal and state gun laws as applicable to seniors and incapacitated adults.

Firearms related issues for aging and incapacitated adults – whether due to declining mental health, physical health or trauma – is an increasing dilemma.   Many professionals who work with seniors may have a vague idea of the safety issues and their potential liability if correct policies and procedures are not in place and strictly followed.  However, after getting involved locally, it became apparent that the gun laws are as much as mystery to the workers and companies in this field as in any other.

Because this issue is gaining media attention, I have been asked to speak at the IGFA annual event in November to assist the organization in developing educational materials and protocols for caretakers who must make hard decisions for the people they are tasked with protecting.

My goal as advisor on the applicable gun laws is not only to educate, but to help professionals set aside any personal biases or unnecessary fears about firearms to help protect a person’s Second Amendment rights while balancing the protected person’s safety.   In addition, I hope to help caretakers of the elderly and incapacitated adults understand the criminal and civil liability that can tag along with their role as the responsible adult.

Caretakers who work with seniors should respect the senior’s wishes when possible.   Rights, including the right defend oneself, should only be taken away from individuals when there is no other option to protect them or those around them.     The little that has been written on this topic to date is designed to excite emotions on both sides of the topic rather than address the actual issues.  One article by Rachael Rettner was posted on Live Science and titled “Are Guns Safe in the Homes of Seniors and the Mentally Ill?   Doctors Weigh In”.

Lumping seniors into a category with the mentally ill, which is an entirely different topic (see my prior Gun Law Podcast with Clayton E. Cramer for more on the mental illness issues) is misleading and a disservice to senior gun owners.   Another article published in the American Journal of Public Health states that more than 17 million people aged 65 years or older own a firearm, that they have the highest rate of suicide by a firearm, and that a disproportionate number in this group apply to carry a concealed weapon.   Other titles include “Guns in Frails Hands” and the recent NBC post written by Bill Briggs “From His Cold Dead Hands:  When Should Grandpa Give Up His Guns?”.  Both articles compare taking guns away from seniors to taking away the car keys.  But a gun may be the only equalizer in a self-defense situation for an elderly person living alone.

Many of my students and clients are seniors, and I receive many questions from seniors about when they can lawfully use deadly force to defend themselves against younger, stronger people.   Again, a firearm can be a great equalizer in a disparity of force situation.

An elderly person’s inability to balance their checkbook or remember to pay their bills on time, along with other factors, can be cause for a court to appoint a conservator.  It may never cross the caretaker’s mind that because a senior needs assistance with daily financial management that they are not allowed to have a gun for personal protection.

The caretaker may also not realize that that possession does not necessarily mean “own”.   Possession can merely be the right to access under a theory of law known as “constructive possession”.   If the guns are not locked up such that the protected person cannot get to them, the protected person and anyone who knowingly assists the person to be in possession or constructive possession is violating federal criminal law.

In comparison, if a senior has prepared for incapacity by creating a trust or power of attorney, there may not be a court process when they start to lose the capacity to care for themselves.  Instead, their named agent or trustee may be able to begin managing their care and finances for them without the person being “adjudicated a mental defective”.  However, caution is still necessary to determine if for the safety of the senior and others, the guns must be removed from the home.

Listen to my podcast on this topic for more information, and check out the IGFA website to learn about the upcoming meeting in November.